Calcutta High Court
Shibnath Hait vs The Kolkata Municipal ... on 24 July, 2023
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
APOT/192/2023
with
WPO/1318/2023
IA NO.GA/1/2023
SHIBNATH HAIT
VERSUS
THE KOLKATA MUNICIPAL CORPORATION AND ORS.
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
AND
The Hon'ble JUSTICE APURBA SINHA RAY
Date : 24th July, 2023.
Appearance:
Mr. Kallol Basu, Adv.
Mr. Anindya Bose, Adv.
Mr. Amit Gupta, Adv.
Ms. Debangana Dey Nayak
Mr. Mridul Biswas, Adv.
...for appellant.
Mr. Gopal Chandra Das, Adv.
Ms. Sabnam De, Adv.
For KMC.
The Court : This appeal is directed against a judgment
and order dated June 22, 2023 whereby the appellant's writ
petition being WPO/1318/2023 was dismissed.
The appellant is apparently the person responsible for the
construction at premises no. B/6/H/2, Shyampukur Street,
Kolkata- 700 004. It is a five-storied building. There is no
sanctioned building plan in respect of the construction.
Notice under section 401 of the Kolkata Municipal
Corporation Act, 1980 was served on the appellant/writ petitioner
by Kolkata Municipal Corporation on April 6, 2023 calling the
appellant to immediately stop the construction work. On April 17,
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2023, it was found that the writ petitioner had resumed the
construction work by defying stop-work notice. Requisition for 24
hours police vigilance was sent on April 17, 2023. The Corporation
authorities decided to invoke section 400(8) of the KMC Act, 1980
for immediate demolition of the unauthorized construction.
Being aggrieved by the aforesaid, the appellant approached
the learned single Judge. He contended that action should be
taken under section 400(1) of KMC Act and this was not a case for
invocation of the emergency power provided in section 400(8) of the
Act. Prayer was made before the learned single judge for setting
aside any proceeding initiated under section 400(8) of the Act.
The learned Judge noted the submission made on behalf of
KMC that the five-storied building had been constructed without
obtaining any sanctioned plan. The authorities decided to invoke
section 400(8) of KMC Act upon finding that the writ petitioner had
defied the stop work notice.
Learned Judge dismissed the writ petition with the following
observations:
"It appears from the submissions made on behalf of the
parties and upon perusal of the instructions forwarded by the
Executive Engineer of the KMC that the petitioner is guilty of
raising unauthorised construction of a five-storied building
without obtaining any sanctioned plan. According to the
provisions of law, construction can be made only upon
obtaining sanction from the Corporation and not prior thereto.
The petitioner contends that re-construction was going on. The
work of reconstruction also requires prior sanction. The
petitioner has not obtained any sanction from the Corporation
for raising the five storied structure. On 6th April 2023 when
the premises was inspected, a notice under Section 401 of the
Act was issued directing the petitioner to immediately stop all
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construction work. The petitioner defied the said4 order and
merrily went on with the work of construction and raised
further floors. The said action of the person responsible for
making construction is absolutely contrary to law. Such type
of action cannot be supported by a Constitutional Court. The
petitioner contends that there has been violation of the
principles of natural justice by not affording an opportunity of
hearing to the petitioner prior to causing the demolition.
Provision of Section 400(8) of the KMC Act does not require
grant of prior opportunity of hearing. The Corporation was of
the opinion that immediate action is required to be taken for
dealing with such flagrant unauthorized construction. The
Corporation detected the unauthorised construction in April
2023 and took steps under Section 400(8) of the Act in June
2023 after noticing that stop work order was defied and illegal
construction continued. The same has to be taken as
immediate action taken to deal with such unauthorised
construction. If such illegal constructions are not stopped or
demolished forthright, the persons responsible for making
such illegal construction will get a free hand and continue with
unauthorised construction and thereafter proceed for
regularization of the same. The averment of the5 petitioner
claiming to be a law-abiding citizen of the country cannot be
accepted as he is guilty of making massive unauthorized
construction."
Being aggrieved, the writ petitioner is before us by way of
this appeal.
Learned Advocate for the appellant says that there was no
such urgency in the matter which justified the Corporation
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authorities invoking section 400(8) of the KMC Act. That provision
is draconian in nature and ought to be pressed into service only
when there is immediate danger to life or limbs of people or other
property. The present case is not such a case. The authorities
should have initiated proceedings under section 400(1) of KMC Act.
This would have given an opportunity to the appellant to
participate in the proceedings and thereafter to challenge any
adverse order by filing a statutory appeal. The appellant has been
deprived of such opportunity. The learned Judge should have
allowed the writ petition.
We have not called upon the learned Advocate of KMC to
make submissions.
We are astonished that the appellant had the guts to
construct a five-storied building without obtaining the prior
permission of KMC. We completely agree with the learned single
Judge that such action cannot be supported in any manner. If any
degree of leniency is shown to such reckless people, who have no
respect for the law of the land, the same will send a very wrong
signal to the members of the society at large. Rule of law must
prevail. A citizen cannot be permitted to put up a construction in
violation of the law of the land and then claim regularization
thereof.
We see absolutely no infirmity in the order under appeal. To
our query as to why the demolition work has not been completed,
learned Advocate for the Corporation tells us that because of
pendency of the instant appeal, the Corporation, after making part
demolition, has stayed its hands. We make it clear that
Corporation shall complete the demolition work at the earliest and
in any event within 4 weeks from date.
The appeal and the connection application are accordingly
dismissed.
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Since no affidavit-in-opposition has been called for, the
allegations made in the petition are deemed to be treated as not
admitted by the respondent.
[ARIJIT BANERJEE, J.]
[APURBA SINHA RAY, J.]
dg/
